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Colman v Department of National Parks, Sports and Racing[2017] QCAT 209

Colman v Department of National Parks, Sports and Racing[2017] QCAT 209

CITATION:

Colman v Department of National Parks, Sports and Racing [2017] QCAT 209

PARTIES:

John William Colman

(Applicant)

v

Department of National Parks, Sports and Racing

(Respondent)

APPLICATION NUMBER:

GAR126-16

MATTER TYPE:

General administrative review matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane 

DECISION OF:

A/Senior Member Hughes

DELIVERED ON:

15 June 2017

DELIVERED AT:

Brisbane 

ORDERS MADE:

The decision of the Department of National Parks, Sports and Racing refusing the application for works involving the installation of a private use only pontoon, adjacent to Lot 1 on RP50860 within the Moreton Bay Marine Park is confirmed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where decision to refuse application for private use pontoon

ENVIRONMENT AND PLANNING – PARKS AND RESERVES – RESTRAINT OF ACTIVITIES WITHIN PARKS AND RESERVES – where declared marine park – where main purpose of zoning plan to conserve marine environment – where zoning plan did not list private pontoon as use within habitat protection zone – where uses within each zone and across zones are to be read together to achieve objects of Act of a comprehensive and integrated strategy for use of the park to conserve the marine environment – where a use specifically listed within a lesser protected zone cannot be imported into a more protected zone without the same wording – where extending the generic wording of ‘another purpose’ or ‘low impact activity’ to include a private pontoon would render the specific wording that includes it in the general use zone as meaningless and run contrary to ascending order of protection – where Legislature shown intent for private pontoon to be permitted in general use zone only by specifically including it in that zone and not habitat protection zone – where this interpretation consistent with framework of Act and objects of each zone

Acts Interpretation Act 1954 (Qld), s 14A

Marine Parks Act 2004 (Qld), s 5

Marine Parks (Declaration) Regulation 2006 (Qld) s 8, Schedule 1

Marine Parks (Moreton Bay) Zoning Plan 2008 (Qld), s 12, s 15, s 17, s 18

Marine Parks Regulation 2006 (Qld), s 108, Schedule 1, s 2

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24, s 42

Commercial Radio Coffs Harbour Ltd v Fuller (1986) 161 CLR 47

Harley v Department of Justice and Attorney-General [2012] QCAT 620

K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309

Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58

Norton v Long [1967] VR 221

O'Brien v Gladstone Regional Council [2015] QCATA 82

Perpetual Executors and Trustees Association of Australia Ltd v FCT (1948) 77 CLR 1

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

Salemi v Minister for Immigration and Ethnic Affairs (No 2) (1977) 137 CLR 396

Scott v Commercial Hotel Merbein Pty Ltd [1930] VLR 75

APPEARANCES:

This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

What is this Application about?

  1. [1]
    The Department of National Parks, Sport and Racing refused Mr John Colman a permit for a private use pontoon in the habitat protection zone of the Moreton Bay Marine Park.
  2. [2]
    Mr Colman has applied to the Queensland Civil and Administrative Tribunal (the Tribunal) to review the Department’s decision. The Tribunal considers the matter afresh to produce the correct and preferable decision.[1] This means that Mr Colman need not prove the Department made an error – the Department’s decision is not presumed correct.[2]
  3. [3]
    The Tribunal effectively “stands in the shoes” of the Department and makes its own decision.[3] The Tribunal may confirm, amend or set aside the Department’s decision and substitute a new decision or return it to the Department to reconsider.[4]

Can Mr Colman have a private pontoon within a habitat protection zone?

  1. [4]
    The Moreton Bay Marine Park is a declared marine park, with a designated zoning plan. The zoning plan is designed to achieve a comprehensive and integrated strategy for using the park, with the main purpose to conserve the marine environment.[5]
  2. [5]
    The zoning plan establishes four zones listed in ascending order of protection: general use, habitat protection, conservation park and marine national park.[6] This means that the general use zone is the least protected, while the marine national park zone is the most protected.
  3. [6]
    Within each zone, the zoning plan lists uses that do not require permission[7] and uses that do require permission.[8] The zoning plan does not list a private pontoon as a use within the habitat protection zone – with or without permission. Instead, the zoning plan specifically lists ‘installing, modifying, relocating or removing a private structure’ as a use requiring permission within the general use zone.[9] A ‘private structure’ includes a pontoon.[10]
  4. [7]
    Mr Colman submitted that the private pontoon falls within ‘another purpose consistent with the objects for the habitat protection zone’[11] or is a ‘low impact activity not involving fishing or collecting’ that does not require permission.’[12] The zoning plan lists both as uses within the habitat protection zone.
  5. [8]
    However, I do not accept Mr Colman’s submission because the uses within each zone and across zones are meant to be read together to achieve the objects of the Act of a comprehensive and integrated strategy for the use of the park to conserve the marine environment:[13]

… to read the section in isolation from the enactment of which it forms a part is to offend against the cardinal rule of statutory interpretation that requires the words of a statute to be read in their context… Problems of legal interpretation are not solved satisfactorily by ritual incantations which emphasise the clarity of meaning which words have when viewed in isolation, divorced from their context. The modern approach to interpretation insists that the context be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity might be thought to arise.[14]

  1. [9]
    Thus, a use that is specifically listed within a lesser protected zone cannot be imported into a more protected zone, without the same wording. If the Legislature had intended a private pontoon as a use within the habitat protection zone – with or without permission – then it could have done so by the same express words as it did for the general use zone. It did not:

… though it is not to be conclusive, the employment of different language in the same Act may show that the Legislature had in view different objects.[15]   

  1. [10]
    This is not mere oversight by the Legislature. Rather, it is consistent with a legislative intent reflected in the more protective objects for the habitat protection zone:
    1. To provide for the conservation of the areas of the marine park within the zone through the protection and management of sensitive habitats that are generally free from potentially damaging activities (my emphasis); and
    2. Subject to that object, to provide opportunities for reasonable use.[16] 
  2. [11]
    The words “subject to” indicate that the second object is subordinate to the first – protection and management of sensitive habitats that are generally free from potentially damaging activities. This part of the object is not included in the general use zone.
  3. [12]
    Thus, extending the generic wording of ‘another purpose’ or ‘low impact activity’ to include a private pontoon would render the specific wording that includes it in the general use zone as meaningless and run contrary to the ascending order of protection.[17]
  4. [13]
    It is a rule of statutory construction that where legislation includes provisions relating to similar matters in different terms, the Legislature intended to deal with them differently.[18] By specifically including a private pontoon in the general use zone and not the habitat protection zone, the Legislature has shown its intent for it to be a use that can be permitted within the general use zone only. This interpretation is entirely consistent with the framework of the Act and the objects of each zone.[19]
  5. [14]
    Mr Colman submitted that the environmental impact of his pontoon is “absolutely minimal” because:
  • Its impact would be minimal and certainly no greater than existing structures and activities;
  • Its permanent nature and support of only two pylons will reduce impacts on the existing landscape, promote foreshore regeneration and reduce footprint on the foreshore; and
  • It is not connected with any commercial activity.
  1. [15]
    Unfortunately for Mr Colman, a person cannot use a zone for a purpose unless it is specified as a purpose that does not require permission, or a purpose that requires permission.[20] A private use pontoon is not specified as either purpose in the Moreton Bay Marine Park habitat protection zone.
  2. [16]
    This means that regardless of what he believes its impact might be, Mr Colman cannot have a private pontoon within the habitat protection zone – with or without permission.  

What is the appropriate Order?

  1. [17]
    The appropriate Order is that the decision of the Department of National Parks, Sports and Racing refusing the application for works involving the installation of a private use only pontoon, adjacent to Lot 1 on RP50860 within the Moreton Bay Marine Park is confirmed. 

Footnotes

[1]QCAT Act, s 20.

[2]Harley v Department of Justice and Attorney-General [2012] QCAT 620, [8], citing with approval Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58, [9].

[3]O'Brien v Gladstone Regional Council [2015] QCATA 82, [18].

[4]QCAT Act, s 24(1).

[5]Marine Parks Act 2004 (Qld), s 5; Marine Parks (Declaration) Regulation 2006 (Qld), s 8, Schedule 1; Marine Parks (Moreton Bay) Zoning Plan 2008 (Qld).

[6]Marine Parks (Moreton Bay) Zoning Plan 2008 (Qld), s 12.

[7]Ibid, s 17.

[8]Ibid, s 18.

[9]Ibid, s 15(1)(o).

[10]Ibid, s 15(3).

[11]Marine Parks (Moreton Bay) Zoning Plan 2008 (Qld), s 18(p).

[12]Ibid, s 17(a).

[13]Marine Parks Act 2004 (Qld), s 5(1),(2); Acts Interpretation Act 1954 (Qld), s 14A; Norton v Long [1967] VR 221.

[14]K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309, 314    (Mason J).

[15]Scott v Commercial Hotel Merbein Pty Ltd [1930] VLR 75, 80 (Irvine CJ).

[16]Marine Parks Regulation 2006 (Qld), Schedule 1, s 2.

[17]An interpretation that gives meaning and effect to a provision is preferred to an interpretation that would render a provision inoperative or inept – Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 382 (McHugh, Gummow, Kirby and Hayne JJ) and Norton v Long [1967] VR 221, 221-4 (Winneke CJ); in the event of any conflict, the generic wording is also to be read down so that it does not conflict with the more specific wording – Perpetual Executors and Trustees Association of Australia Ltd v FCT (1948) 77 CLR 1, 29 and Commercial Radio Coffs Harbour Ltd v Fuller (1986) 161 CLR 46.

[18]Salemi v Minister for Immigration and Ethnic Affairs (No 2) (1977) 137 CLR 396.

[19]Acts Interpretation Act 1954 (Qld), s 14A.

[20]Marine Parks Regulation 2006 (Qld), s 108.

Close

Editorial Notes

  • Published Case Name:

    Colman v Department of National Parks, Sports and Racing

  • Shortened Case Name:

    Colman v Department of National Parks, Sports and Racing

  • MNC:

    [2017] QCAT 209

  • Court:

    QCAT

  • Judge(s):

    Member Hughes

  • Date:

    15 Jun 2017

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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